Music – Even Bad Music – Isn’t A Crime

People can get passionate about music. I understand – I certainly fall into that bunch. When emotions flare people might even talk about music being so bad it’s criminal. But it’s good to know that such thoughts are limited to the realm of friendly hyperbole, at least in the First Circuit.

Musical taste should have been the least of Neftali Alvarez-Nunez’s problems. Alvarez-Nunez was a habitual user of marijuana and addicted to Percocet, which meant it was illegal to possess a firearm. But the firearm he possessed was actually an unregistered machine gun, so he got charged with two federal firearm offenses. He pleaded guilty and faced a maximum recommended sentence of 30 months, according to the United States Sentencing Guidelines.

However, in the report that included those calculations, the probation officer also included “a surfeit of information about the defendant’s musical pursuits.” These included being a member of Pacho y Cirilio, a somewhat popular group in Alvarez-Nunez’s housing project in Puerto Rico. The groups songs tended to (in the probation officer’s words): “promote violence, drugs and the use of weapons and violence.” That was particularly important because the housing project was “known to be associated with murders, drug sales and smuggling and weapons trafficking” (the First Circuit later would refer to it as a “no-man’s land”).

The probation officer, and later the Government at sentencing, suggested that this was a basis for imposing a sentence above that 30-month threshold. The Government introduced one of the group’s videos which, the court concluded, “included rifles and grenade launchers, along with children.” After rejecting Alvarez-Nunez’s argument that considering his music violated the First Amendment, the court imposed a sentence of 96 months – more than three times what the Guidelines recommended.

Thankfully, the First Circuit vacated that sentence (it called the sentencing court’s rational “implausible”), although the line between acceptable use of a defendant’s artistic expression and First Amendment infringement is a little finer than it perhaps should be. The court notes that there is no per se rule against considering “one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” A defendant’s writings or recordings could be relevant to the stated purposes of sentencing, but there wasn’t any showing of such relevance in this case. The fact that some of Pacho y Cirilio’s songs involve unsavory or illegal conduct isn’t enough.

In reaching that conclusion, the court noted an obvious, but apparently overlooked, truth:

Implicit in this rationale is the assumption that the lyrics and music videos accurately reflect the defendant’s motive, state of mind, personal characteristics, and the like. But this assumption ignores the fact that much artistic expression, by its very nature, has an ambiguous relationship to the performer’s personal views.